Himachal Pradesh High Court
Pankaj vs State Of H.P on 29 April, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 15 of 2024
Judgment reserved on 20th April,2024
Date of Decision 29thApril, 2024.
________________________________________________________
Pankaj ...Petitioner
Versus
State of H.P. ....Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting? Yes _______________________________________________________________ For the Petitioner: M/s Ashok Saini, Hemant Thakur and Mr.Antrieksh Advocates.
For the Respondent: Mr. Varun Chandel, Additional Advocate General.
_______________________________________________________________ Vivek Singh Thakur, J.
Petitioner has approached this Court for grant of regular bail under Section 439 of the Code of Criminal Procedure, (in short 'Cr.P.C.') in case FIR No. 23 of 2021, dated 03.03.2021, registered under Sections 420, 467, 468, 471, 409 and 120-B of the Indian Penal Code in Police Station East Shimla.
2. Status Report stands filed, wherein it is stated that Shri Navin Kumar Patial, Branch Manager of State Bank of Cr.MP(M) No.15 of 2024 ...2...
India, Panthaghati (Shimla), presented an application to the police, stating therein that on 8.12.2015, co-accused Jitender Verma and Sanjeev Kumar approached State Bank of Bikaner and Jaipur (now after merger, State Bank of India) and made a request for grant of Home Loan of Rs.15,00,000/- for purchase of property, and that request of these co-accused was considered by the Bank and the Bank agreed to grant Home Loan on the terms and conditions as stipulated in the Sanction Letter. Thereafter, in order to secure the loan, these accused persons mortgaged their property and deposited original title document, i.e. Sale Deed, registered vide registration No.2698, vide which equitable mortgage has been created, and the bank sanctioned the loan and asked these two persons to execute registered mortgage deed also, on which they deposited mortgage deed registered vide registration No.8890. When bank official visited the property, he found that the borrowers had sold all the flats in the property and same was confirmed by the Bank's Empanelled Advocate in his title investigation report that said sale deed was not found registered with Sub Registrar, Shimla.
3. It is stated in the Status Report that the aforesaid two accused had also approached the aforesaid Bank, on Cr.MP(M) No.15 of 2024 ...3...
15.6.2015, and made a request/applied for grant of Home Loan of Rs.20,00,000/- for completion/finishing of semi-
finished house, which was sanctioned on the terms and conditions mentioned in the Sanction Letter, and for the purpose supplied and deposited mortgage deed registered in the office of Sub Registrar Theog, vide Registration No.479, but, on inquiry, the said mortgage deed was found to be forged and fabricated document.
4. It has been stated that co-accused Sanjay, in connivance with other accused persons Jitender Verma and Sanjeev Kumar, on 28.12.2016, approached the aforesaid bank for grant of loan of Rs.20,00,000/- for purchase of entire RCC frame structure of Ground Floor and Parking Floor of under construction building, which was sanctioned on the terms and conditions mentioned in the Sanction Letter, and for the purpose co-accused Sanjay deposited original sale deed with the bank, i.e. Sale Deed registered in the Office of Sub Registrar Shimla, vide registration No.2580 and also deposited Mortgage Deed registered in the Office of Sub Registrar Shimla vide Registration No.1625, but, on inquiry, it was found that the property mentioned in the deeds was not Cr.MP(M) No.15 of 2024 ...4...
in the name of the borrower and it was also confirmed on inquiry from office of Patwari.
5. It is further stated in the Status Report that petitioner Pankaj also, in connivance with co-accused Jitender Verma and Sanjeev Kumar, approached the aforesaid Bank on 23.2.2017 and applied for grant of loan of Rs.20,00,000/- for purchase of semi-finished flat, which was sanctioned on the terms and conditions mentioned in the Sanction Letter, and for the purpose petitioner Pankaj deposited original Sale Deed, i.e. Sale Deed registered in the office of Sub Registrar Shimla, vide registration No.146 and thereafter also deposited Mortgage Deed, registered in the office of Sub Registrar Shimla, vide registration No.1676, but, on inquiry by the Empanelled Advocate of the Bank, it was found that neither the Sale Deed belonged to petitioner Pankaj nor the Mortgage Deed was in existence.
6. It is also stated in the Status Report that co-
accused Sanjeev Kumar had also approached the aforesaid Bank on 20.9.2016, for grant of Home Loan of Rs.20,00,000/-, which was sanctioned on the terms and conditions mentioned in the Sanction Letter, and for the purpose deposited original title deed with the Bank, i.e. Sale Deed registered in the Office Cr.MP(M) No.15 of 2024 ...5...
of Sub Registrar Solan, vide registration on 2341, and, on inquiry, it was found that the property mentioned in the deed was not in the name of co-accused Sanjeev Kumar and that the document was found to have been false, fabricated and forged, prepared to cheat the Bank.
7. It is stated in the Status Report that the petitioner as well as other co-accused, in order to cheat the bank of its public money, prepared false and fabricated documents.
8. On the basis of the aforesaid application/complaint of the Branch Manager of the State Bank of India, Panthaghati (Shimla), FIR in question has been registered.
9. Petitioner as well as other co-accused had also applied for anticipatory bail before the Additional Sessions Judge (1), Shimla, and after obtaining interim bail, they had joined investigation, but said bail application was dismissed on 20.4.2021. Thereafter, petitioner along with other co-accused had approached this Court under Section 438 Cr.P.C. seeking anticipatory bail by filing Cr.MP(M) No. 813 of 2021 titled Pankaj vs. State of H.P. which was dismissed on 19th August, 2021 along with Cr.MP(M) No. 811 of 2021 titled Jitender Kumar vs. State of HP, Cr.MP(M) No. 812 of 2021 titled Sanjeev Cr.MP(M) No.15 of 2024 ...6...
Kumar vs. State of HP and Cr.MP(M) No. 814 of 2021 titled Sanjay vs. State of H.P.
10. As per Status Report, after dismissal of petitions for anticipatory bail in 2021, petitioner and other co-accused absconded and were not traceable despite making all out efforts. On 3.12.2023, on the basis of location, petitioner was apprehended in SAS Nagar Mohali and was brought for interrogation to Police Chowki Kasumpti and after finding sufficient ground for his arrest, he was arrested at 10.25 PM on 3.12.2023. Thereafter, he remained in police remand till 6.12.2023. On 6.12.2023 after rejection of his bail application by Additional Chief Judicial Magistrate-I, Shimla he was sent to judicial custody. Since then, petitioner is in jail.
11. Learned counsel for petitioner has submitted that petitioner was very much available in his native village Beginal, in Tehsil Theog, District Shimla and after joining investigation, during his enlargement on anticipatory bail, he was never called by police for associating him in investigation and during intervening period, his marriage was also solemnized in a public function and it is not a case that petitioner was hiding himself but is a case where he was never Cr.MP(M) No.15 of 2024 ...7...
asked by police to join the investigation at any point of time after August, 2021.
12. It has been further submitted by learned counsel for petitioner that no doubt Jitender and Sanjeev are his relatives, but he is not beneficiary of fraud alleged to be committed in present case rather he is a victim as he was influenced by Jitender and Sanjeev, due to close relationship, to put his signatures at some documents with assurance that he would be provided a Flat for which he obtained loan bonafide but due to fraud committed by other co-accused, he could not have the Flat instead he has been considered to be an co-accused in the alleged offences committed by others. It has been further submitted that petitioner is beneficiary of not even a single penny rather he has been burdened with loan of Rs.24 lacs received from the Bank and though he is innocent and has been trapped by his relatives to receive money by getting the loan sanctioned in his name as he was desirous to have a Flat in Shimla, but as the loan has been disbursed in his name, to show his bonafide, he has also made repayment of said loan but without prejudice to his claim of innocence.
According to him, after making certain re-payment by petitioner, outstanding amount is Rs.19 lacs.
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13. It has been submitted by learned counsel for petitioner that petitioner is in custody since 3.12.2023 i.e. since last about 5 months and challan has already been presented in Court against him on 28.02.2024 but trial has not been commenced as charge has not been framed against the petitioner and case is pending for 2 nd August,2024. It has been submitted that all offences alleged to have been committed by petitioner are triable by Magistrate and there is no possibility of commencing and conclusion of trial in recent future and therefore, petitioner should not be punished without trial and thus, he is entitled for bail at this stage.
14. Learned Additional Advocate General has submitted that bail application Cr.MP(M) No. 813 of 2021 was dismissed on 19th August, 2021 and thereafter, petitioner was absconding along with other co-accused. Further that there is a prima facie case against the petitioner as he was active participant in sanctioning the loan amounting to Rs.20 lacs in his favour which was transferred to the Accounts of other co-
accused and he had deposited fabricated sale deeds and mortgaged deed to the Bank and was not available to police since August, 2021 and therefore, keeping in view his conduct, he is not entitled for bail. Further that grant of bail to him will Cr.MP(M) No.15 of 2024 ...9...
give a wrong message to the Society. He has also referred that maximum sentence provided under Section 467 IPC is life imprisonment. It has been submitted that a great loss has been caused by petitioner and other co-accused to public money and therefore, considering the nature and gravity of economic offence committed by petitioner and others, he is not entitled for bail.
15. It has been contended on behalf of petitioner that there is no rule to deny the bail in all economic offences and case of each other is to be considered on the basis of facts and alleged role of involvement of a person in commission of offence and there is presumption of innocence in favour of petitioner and facts and circumstances of the case also indicate that he is victim instead of accused and bail should not be refused to him only for the purpose of giving the taste of imprisonment as a lesson. He has submitted that it is a cardinal principle of Criminal Jurisprudence that detention during trial cannot be used as a detention without conviction before trial.
16. To substantiate the plea, learned counsel for petitioner has referred the pronouncements of the Supreme Court in Sanjay Chandra vs. Central Bureau of Cr.MP(M) No.15 of 2024 ...10...
Investigation reported in (2012)1 SCC 40 by referring following paras:-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he Cr.MP(M) No.15 of 2024 ...11...
should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
24 In the instant case, as we have already noticed that the "pointing finger of accusation"
against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of Cr.MP(M) No.15 of 2024 ...12...
is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice."
25 The provisions of Cr.PC confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
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36. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused (See Babba v. State of Cr.MP(M) No.15 of 2024 ...13...
Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC
383).
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39 Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds: The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonm for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
Cr.MP(M) No.15 of 2024...14...
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
1. Learned counsel for petitioner has also referred following paras of pronouncement of the Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another reported in (2022)10 SCC 51:-
"Bail is Rule
12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This court in Nikesh Tarachand Shah vs. Union of India, (2018) 11 SCC 1, held that:Cr.MP(M) No.15 of 2024
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"19. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-
88, paras 27-30) "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318, AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases"
observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60, it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion Cr.MP(M) No.15 of 2024 ...16...
conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson, 1931, AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 that:
(SCC p. 242, para 1) "1. ... the issue [of bail] is one of liberty, justice, public safety and Cr.MP(M) No.15 of 2024 ...17...
burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.'
29. In Gurcharan Singh v. State (Delhi Admn. (1978) 1 SCC 118, it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para
29) "29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.'
30. In American Jurisprudence (2nd, Vol. 8, p. 806, para 39), it is stated:
"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a Cr.MP(M) No.15 of 2024 ...18...
recognizance or bond would effect that end."
It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
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24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India, (1978) 1 SCC 248."
13. Further this Court in Sanjay Chandra v. CBI (2012) 1 SCC 40, has observed that:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must Cr.MP(M) No.15 of 2024 ...19...
be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."Cr.MP(M) No.15 of 2024
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Presumption of innocence
14. Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.
15. Presumption of innocence has been acknowledged throughout the world. Article 14 (2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Rights acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty.
16. Both in Australia and Canada, a prima facie right to a reasonable bail is recognized based on the gravity of offence. In the United States, it is a common practice for bail to be a cash deposit. In the United Kingdom, bail is more likely to consist of a set of restrictions.
17. The Supreme Court of Canada in Corey Lee James Myers v. R., 2019 SCC 18, has held that bail has to be considered on acceptable legal parameters. It thus confers adequate discretion on the Court to consider the enlargement on bail of which unreasonable delay is one of the grounds. R. v. Kevin Antic., 2017 SCC 27:
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"1. The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons. This right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. Under the first aspect, a provision may not deny bail without "just cause" there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.
While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in Sections 515(1) to (3) of the Criminal Code. Save for exceptions, an unconditional release on an undertaking is the default position Cr.MP(M) No.15 of 2024 ...22...
when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and Cr.MP(M) No.15 of 2024 ...23...
proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under S.515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person's behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. Jeffrey St-Cloud, 2015 SCC 27."
18. We may only state that notwithstanding the special provisions in many of the countries world- over governing the consideration for enlargement on bail, courts have always interpreted them on the accepted principle of presumption of innocence and held in favour of the accused.
19. The position in India is no different. It has been the consistent stand of the courts, including this Court, that presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. Resultantly burden is placed on the prosecution to prove the charges to the court of law. The weightage of the evidence has to be assessed on the principle of beyond reasonable doubt.
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55. Section 389 of the Code concerns itself with circumstances pending appeal leading to the release of the appellant on bail. The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial. This is for the reason that "presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the appellant who has suffered a conviction. A mere pendency of an appeal per se would not be a factor.
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91. P.Chidambaam vs. Directorate of Enforcement. (2020)13 SCC 791: (SCC pp.804-805) para 23) "23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences Cr.MP(M) No.15 of 2024 ...25...
would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial.
92. Sanjay Chandra vs. CBI (2012)1 SCC 40:
(SCC pp.62-64, paras 39-40 & 46) "39. Coming back to the facts of the present case, both the courts have refused the Cr.MP(M) No.15 of 2024 ...26...
request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
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46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
17. It has been further submitted that earlier bail application rejected on 19th August, 2021 was preferred under Section 438 Cr.P.C. and as the parameters for deciding the application under Section 438 and 439 Cr.P.C. are altogether different, rejection of earlier bail application of petitioner in present petition to enlarge him on regular bail particularly when his detention is not required at all for investigation or any other purpose except for presence during trial for which he is ready to abide by all conditions imposed by Court including furnishing bail bonds to the satisfaction of Court.
19 Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and taking into account factors and parameters, as Cr.MP(M) No.15 of 2024 ...28...
propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.
20 Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of trial Court, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-
1. That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;
2. That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
3. That the petitioner shall not obstruct the smooth progress of the investigation/trial;Cr.MP(M) No.15 of 2024
...29...
4. That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
5. That the petitioner shall not misuse his liberty in any manner;
6. That the petitioner shall not jump over the bail;
7. That in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
8. That the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;
and
9. The petitioner shall not leave India without permission of the Court.
21. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
22. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled.
Cr.MP(M) No.15 of 2024...30...
In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
23 Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
24 Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
The petition stands disposed of in the aforesaid terms.
( Vivek Singh Thakur ) April 29,2024(ms) Judge.
Digitally signed by SUBHASH CHAND DHIMANDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH SUBHASH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3418061207364d8c002725dfc58ff116f678c3d39289db29b992cce8759 05119, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc4e6cd2ed5d4a8c30 134c1b, CN=SUBHASH CHAND DHIMAN CHAND DHIMAN Reason: I am the author of this document Location:
Date: 2024.04.29 17:01:44+05'30' Foxit PDF Reader Version: 2024.1.0